Plaintiffs'
counsel in this case filed seventy-three Engle,
personal injury lawsuits on behalf of dead persons just
before the statute of limitations expired in January 2008.
Most of the named plaintiffs had been dead for many years,
some for only months, but none were alive when counsel filed
lawsuits in their names. Once the defendant tobacco companies
discovered in 2015 that the plaintiffs had been dead from the
start of the cases, they moved to dismiss them. This came on
the heels of a federal district court decision dismissing
hundreds of similar Engle cases brought by
plaintiffs' counsel on behalf of dead persons in federal
court. Similarly, here, the trial court dismissed the cases
and in doing so denied plaintiffs' counsel's request
for leave to amend the complaints and substitute new party
plaintiffs into the actions. Plaintiffs' counsel appealed
these decisions. We affirm.

I.

Almost
ten years ago in Engle, the Florida Supreme Court
decertified a class action lawsuit against tobacco companies
and required class members to file individual lawsuits within
one year in order to receive the benefit of certain
Engle findings. Engle v. Liggett Grp.,
Inc., 945 So.2d 1246, 1254 (Fla. 2006). The statute of
limitations established by the court expired in January 2008.
Before that date, attorneys from The Wilner Firm and Farah
& Farah, P.A., (hereinafter "plaintiffs'
counsel") filed many Engle-derivative lawsuits.
These included the seventy-three lawsuits at issue in this
case, which were filed in the Circuit Court for Duval County
on behalf of persons who were already deceased. These
complaints falsely alleged that the plaintiffs were living
smokers whose personal injuries were "permanent and
continuing, and . . . [would] be suffered into the
future." The pleadings didn't acknowledge that the
named plaintiffs were already dead, nor did they allege
alternative wrongful death or survival claims. Apparently,
plaintiffs' counsel wasn't aware that their clients
were already dead.

Because
huge numbers of Engle cases were filed in the trial
court before the Engle deadline, the court abated
many of them. Nothing much occurred in the seventy-three
cases at issue here for many years. But in 2015, after a
federal court in Jacksonville dismissed hundreds of
Engle cases after discovering that they were filed
by plaintiffs' counsel on behalf of dead persons in
federal court (and was subsequently affirmed by the Eleventh
Circuit), In re Engle Cases, No.
3:09-cv-10000-J-32JBT, 2013 WL 8115442 (M.D. Fla. Jan. 22,
2013), aff'd, 767 F.3d 1082 (11th Cir. 2014),
the trial court below issued a questionnaire designed to
identify whether plaintiffs' counsel had filed viable
Engle actions. Answers submitted to the
questionnaires indicated that seventy-three of the cases
filed by plaintiffs' counsel weren't viable. Just as
in the federal actions, plaintiffs' counsel had filed
lawsuits on behalf of persons who were already dead. Most of
these "plaintiffs" had been dead for more than a
decade, since as far back as 1986. Months passed after
plaintiffs' counsel answered the court's
questionnaire, during which plaintiffs' counsel did not
seek to replead the cases or correct their allegations. In
November 2015, the defendants moved to dismiss the cases. In
their motion, the defendants argued that the personal injury
actions filed in the name of dead individuals were void and
legal nullities "that confer[red] no jurisdiction on any
court and cannot be 'cured'-especially long after the
expiration of the applicable limitations period-by motions to
substitute or amend." Plaintiffs' counsel responded
to the motion in January 2016 by seeking leave to amend the
pleadings to substitute the survivors and estates related to
the named plaintiffs, "if any, " and to convert the
cases to wrongful death actions. But the trial court denied
plaintiffs' counsel's request and dismissed the cases
with prejudice. Like the federal district court, the trial
court considered the plaintiff-less complaints to be legal
nullities and providing no basis for new pleadings to
"relate back" for purposes of satisfying
Engle's 2008 filing deadline. It also concluded
that allowing more time for plaintiffs' counsel to seek
out valid plaintiffs and amend the complaints now, some eight
years after they were first filed, would be unfairly
prejudicial to the defendants.

We find
no error in the trial court's decision to dismiss the
personal injury lawsuits filed by plaintiffs' counsel on
behalf of dead plaintiffs. The lawsuits filed here were
nullities because a dead person cannot file and maintain a
lawsuit. It is a basic legal truth that "unless an
in rem proceeding is before the court, a cause of
action must be conducted by or opposed by a 'person'
recognized under the laws of this state." Cocoa
Acad. for Aerospace Tech. v. Sch. Bd. of Brevard Cty.,
Fla., 706 So.2d 397, 398 (Fla. 5th DCA 1998). Dead
persons aren't qualified to conduct a suit. Xtra
Super Food Ctr. v. Carmona, 516 So.2d 300, 301 (Fla. 1st
DCA 1987) ("[D]eceased persons cannot be parties to a
judicial or quasi-judicial proceeding."); see also
In re Engle Cases, 767 F.3d 1082, 1086-87 (11th Cir.
2014) ("As any lawyer worth his salt knows, a dead
person cannot maintain a personal injury claim.");
DeArmas v. Blonstein, 356 So.2d 1339, 1340 (Fla. 3d
DCA 1978) (affirming the dismissal of a personal injury claim
where the plaintiff died before the lawsuit was filed).

Corresponding
to this legal rule, plaintiffs' counsel had no authority
to file and maintain these cases on behalf of the dead
plaintiffs. "The death of [the] client terminates the
relationship between the attorney and client and the
attorney's authority to act by virtue thereof is
extinguished." Rogers v. Concrete Scis., Inc.,
394 So.2d 212, 213 (Fla. 1st DCA 1981); BEC Constr. Corp.
v. Gonzalez, 383 So.2d 1093, 1094 (Fla. 1st DCA 1980)
(same); see also Schaeffler v. Deych, 38 So.3d 796,
801 (Fla. 4th DCA 2010) ("The death of a party limits
the authority of counsel to proceed in the underlying
action."); Brickell v. McCaskill, 106 So. 470,
472 (Fla. 1925) (recognizing that the attorney-client
relationship "terminated at [the client's]
death"). Thus, the complaints filed by plaintiffs'
counsel in these cases failed to confer jurisdiction on the
trial court and were legal nullities from the start. BEC
Constr., 383 So.2d at 1094 ("No proper claim ever
having been filed, . . . [the court] had no
jurisdiction.").

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;It
would be a different case if plaintiffs&#39; counsel, instead
of naming dead persons as plaintiffs to personal injury
actions, had merely misnamed personal representatives within
a wrongful death complaint. That&#39;s what happened in
Estate of Eisen v. Philip Morris USA, Inc., 126
So.3d 323 (Fla. 3d DCA 2013). The Third District in
Eisen allowed amendment of a wrongful death
complaint that named an invalid personal representative of an
estate as the plaintiff. Id. at 336. Eisen
concluded that the estate "remained at all times the
real party in interest, " and that the personal
representative was simply a "nominal plaintiff[]."
Id. at 329-30. The court permitted the substitution
of a proper nominal plaintiff in place of a nominal plaintiff
who lacked a proper capacity to sue. Id. at 336;
accord Esposito v. United States, 368 F.3d 1271
(10th Cir. 2004) (allowing amendment where the complaint
erroneously named the decedent, instead of his heirs, in the
caption of a wrongful death action). In contrast, the
seventy-three cases here do not involve misidentifying or
replacing nominal plaintiffs, or other simple
party-identification errors within a wrongful death
complaint. Indeed, the complaints here featured no estates,
survivors, personal representatives, or other ...

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